INTRODUCTION

Building on earlier work (Baron 1999a b) this essay addresses the theme of guilt in law and literature from the law side It argues that the legal

Toward a Critique of Guilt: Perspectives from Law and the Humanities Studies in Law Politics and Society Volume 36, 17-30

ISSN: 1059-4337/d_oi_:10.1016/S1059-4337(05)36002-9

academy’s flirtation with literature reflects two forms of guilty uneasiness.

The first relates to the question whether lawyers should be reading literature at all. There was a heady period in the late 1980s and early 1990s during which literature was seen as a promising source of moral guidance and supplementation for law and thus law and lit pieces peppered the major law reviews In contrast, one rarely sees much discussion of literature in legal periodicals at all these days If lawyers are reading literature now they seem to be doing it very quietly One hypothesis might be that, especially following Posner’s critique of the law and literature movement in his perhaps overly influential book on the subject (Posner 1998'),¹ legal scholars have lost their certainty about the real applicability of literature to law

The second form of uneasiness relates to what literature is said to show when it is read Here the claim again much more muted today than 10 years ago is that literature reveals law’s moral emptiness and inability to deal with human complexity The anxiety here is not about the methodological legitimacy of reading literature; rather, it is a substantive anxiety about the adequacy of law ie law’s content

Both forms of uneasiness stem from unarticulated and unexplored notions of what ‘‘law’’ really is The methodological anxiety presumes a distinctly legal method of analyzing legal issues in which literature does not have a truly legitimate role The substantive anxiety presumes that law has an identifiable content one that excludes much that appears in literature Both presumptions are I argue questionable and make sense only if law is viewed as primarily doctrinal

Fundamentally these varieties of uneasiness have their roots in the still unresolved conceptual challenge of figuring precisely what is ‘‘interdisciplinary’’ about the law and literature enterprise In one version of ‘‘interdisciplinarity’’ law and literature are depicted as basically separate and distinct realms and ‘‘interdisciplinary’’ work is work that crosses the border between the two realms If what is inside one of the realms were already inside the other there would be nothing ‘‘interdisciplinarity’’ could do In a different version of ‘‘interdisciplinarity’’ literature is used as a mirror that shows law to itself somehow more clearly This is a selfish ‘‘interdisciplinarity’’ interested in literature only insofar as it has lessons and insights for law A third more conventional ‘‘interdisciplinarity’’ which examines law in literature inverts the second form, scavenging both literary and legal materials for new themes to be run through the mill of conventional literary criticism.² Developing an honest form of ‘‘interdisciplinarity’’ will be difficult if not impossible because it requires an examination of usually unstated assumptions about the uniqueness of law.

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Source: Anderson Matthew (ed.). Toward a Critique of Guilt: Perspectives from Law and the Humanities. JAI Press,2005. — 168 p.. 2005

INTRODUCTION

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